Lisa Falkenberg: Does Texas share blame in tragic fire?

LISA FALKENBERG, Copyright 2011, HOUSTON CHRONICLE |
March 25, 2011

A lawsuit filed Wednesday suggests that it does. The lawsuit, by Tiffany Dickerson, the mother of two fire victims, claims the state was grossly negligent in licensing Jackie's Child Care.

It blames the Texas Department of Family and Protective Services for not thoroughly investigating operator Jessica Tata's criminal background before giving a child care license to a 22-year-old with a history of felony arson. And for not adequately regulating child care facilities, in general.

The lawsuit claims the agency encourages parents to use licensed child care and then misleads them about the steps it's taking to ensure the licensed operations' safety.

"This is horrible and I intend, at whatever cost, to try and make the state pay for this," said Dickerson's attorney, Michael Gallagher. "It is an example of how lousy our state agencies function. Why? Because they're bad people? No. Because they're under-funded."

Lawsuits against the state face long odds, even though Gallagher says he believes this one qualifies as an exception to the state's sovereign immunity.

No one can say for sure that better state regulations and training could have persuaded Tata not to leave seven children alone the day the fire broke out.

Still, the suit raises important questions about how much responsibility the state bears in ensuring Texas child care facilities are safe.

The state was responsible for Tata's background check. But the Department of Public Safety, which conducts the checks, relies on local arrest and disposition reports.

In Tata's case, she apparently lied in her child care application when asked about a history of felonies. As a teen, she served three years probation for setting fire to toilet paper rolls in a Katy Taylor High School bathroom. Arson is a second-degree felony.

DPS has maintained that it missed the case in its background check because a local jurisdiction (they don't know which) didn't send the arrest report. Statewide, the reporting rate from local jurisdictions to DPS is just 74 percent for adult arrests and 83 percent for juvenile arrests. Harris County has one of the best records in the state, but obviously records still fall through the cracks, which is a failure in the system that needs to be fixed.

If the local department had sent the report, perhaps Tata would not have gotten her license and four children would be alive today. Or, perhaps, she might have run an illegal, unlicensed operation, as she had several years earlier, drawing children whose parents who didn't check or didn't require state registration, and the same tragic fire would have happened just the same.

The lawsuit also calls out the state for making only minimal requirements of individuals seeking to open home-based child care. For not requiring operations like Tata's to undergo city fire inspections. For performing only infrequent inspections. (Once every two years, in Tata's case.) For requiring less rigorous regulation of smaller, home-based operations than bigger day care facilities. For requiring low levels of training.

"It ain't like you're fixing a flat tire. These are kids," Gallagher, the attorney, told me. "And because you're poor, you don't get the kind of protection you get if you're richer? … Your kids should not be put at greater risk."

None of this is acceptable. Agency officials themselves have acknowledged some of the problems, going so far as to say that some standards may be unsafe. But recent attempts to improve child-to-staff ratios were shouted down by the industry and by politicians like Sen. Tommy Williams, R-The Woodlands. The agency's own recommendation to add training hours was set aside over economic concerns.

The agency recently signaled it doesn't have the resources to keep up with its current regulatory workload. From 2000 to 2009, applications to open child care facilities rose 23 percent. Abuse and neglect investigations went up 72 percent. Legislatively required background checks grew 63 percent.

This session the agency is asking for $7 million to hire 63 more employees in child care licensing. That would reduce the workload only slightly, from 71 cases per worker, to 61 by 2013.

Even during a profound budget crisis, this request should be a priority for lawmakers.

It will be hard for Gallagher or anyone to prove that Texas' lax standards and regulation of the child care industry directly caused the fire that killed Dickerson's son and burned her daughter.

But it's easy to see that those lax standards and regulation didn't do much to prevent it.

Reform is needed. And it's up to those of us who care about children in this state to call our lawmakers and demand it.